February 2, 2017 Musicology, Opinion 1 Comment

Rolling Stone Magazine has published the entire transcript from Jimmy Page’s testimony during the trial in June 2016 in which Led Zeppelin was sued for copyright infringement of the song “Taurus” by the band, Spirit, in Zeppelin’s iconic “Stairway To Heaven.”

Spirit were contemporaries of Zeppelin. The two bands appeared in concert together (on the same bill, that is) prior to the publishing of “Stairway To Heaven.” And as you can hear in these two short excerpts, a certain similarity between the two songs is obvious.

While the trial was going on, I posted my analysis where I determined that despite the similarity Stairway does not plagiarize Taurus, nor does it infringe upon Taurus’s copyright.

Here though I just want to share my favorite bits from Jimmy Page’s testimony taken from direct examination during the trial. The complete transcript might be interesting to anyone who either really loves litigation or really loves Led Zeppelin. It’s Jimmy Page — a blue chip rockstar, but be warned that its lengthy and gets a bit bogged down at times — in fact the questioning of Page went on for such a long time that the judge warned plaintiff’s attorney Francis Malofiy repeatedly that his total questioning time was limited and that he might want to move things along a bit or risk being timed out.

It detracts from the intrigue also that to an extent Spirit lost this case before trial even began when Zeppelin was granted a motion in limine that barred certain evidence from being introduced at trial. The jury never heard the two recordings! The case was narrowly limited to the question, note my emphasis, “Did ‘Stairway, within the time statute of limitations, infringe upon the deposit copy of “Taurus,” filed with the U.S. Copyright Office. This “deposit copy” is the handwritten sheet music version of Taurus submitted with the copyright application. It’s not the recording. This registered deposit copy of “Taurus” doesn’t even include the guitar introduction that obviously links the two songs. It was all excluded.

By the way, the deposit copy of “Stairway” begins at the lyric, “There’s a lady who’s sure…” There’s no famous guitar intro on Stairway’s copyright document either.

Reading the transcript is like riding along as the almost completely handcuffed plaintiff attorney Malofiy, can’t play the recording of “Taurus” for the jury, nor can he even talk about such recording hardly at all, tries to get Page to admit, first, that he might’ve heard Taurus somehow before he wrote Stairway, which Page won’t; and secondly that the two sound similar, which Page also won’t! Fun stuff.

Despite the motion in limine though, a remarkable thing happened that nobody else seems to have found remarkable. I’m reading along and all of the sudden I said aloud to myself, “hold on, he said what?!”

It happens when Page is recalling being shown a comparison of the two tracks from an internet site, as many of us have. This he says was the first he’d heard of the controversy at all. It was brought to his attention, and so he listened. Malofiy quickly then tried to clarify just how much of Taurus was heard by Page in that internet recording. Malofiy needs to establish this right away because the relevant guitar part in Taurus doesn’t occur until 45 seconds in! But Page, evidently well coached and maybe realizing he’s about to misstep, frustrates Malofiy by referring to the irrelevant orchestral sounding stuff that begins Taurus.

So Malofiy quickly pivots and asks…

Malofiy: “Now, once the acoustic guitar came in, isn’t it true the two songs are similar in that section?”

And there are objections and rulings ringing out from Page’s attorney and the judge but despite that… HOLY COW, Page answers!

Page: “Oh, I don’t think so.”

This for me may have very quietly been the highlight of the whole shebang, though I’ve never heard anyone mention it.

Jimmy Page said he doesn’t think the songs are similar in that section.

Seriously?! He might as well have flipped Malofiy the bird.

Thereafter Malofiy is on a short leash. He doesn’t get another clean shot. A lot of time is spent on the matter of “access” with Page denying that he has any recollection of ever having heard Taurus, nor of Zeppelin every being in concert alongside Spirit, which meanwhile is a documented fact. It’s all fun and makes you wish you could’ve been there.

As a musicologist the most theoretical piece was this…

Page was asked about the structure of the famous guitar intro to Stairway. This seemed to forecast and set up a planned argument that Stairway has a peculiar similarity to Taurus in that Stairway’s intro descends chromatically from A to F (which it does) and then, Malofiy insists…

  • “avoids the fifth chord, the E?”
  • “does not go to the fifth?”
  • “skips over the fifth and goes back?”

Malofiy said it in each of those ways, asking Page to affirm. Page hems and haws perhaps being careful not to answer anything that wasn’t precisely asked. So Malofiy continued more insistently.

Malofiy: Okay. Does it ever go to the E before it resolves back to the A?

Page: The E chord or the E note?

Malofiy: E.

Page: E note?

Malofiy: Right.

(there’s some debate then among the attorneys and judge as to procedure)

Malofiy: Okay. Is it your testimony that “Stairway to Heaven” does not descend the five pitches and avoid the fifth chord, the E?

It seems that Malofiy doesn’t quite understand what he’s asking, but is determined to get this in. He flips, as Page asks for clarification, back and forth between asking about the fifth degree of the scale ( a note) and a chord built upon the fifth degree of the scale.

Who told Malofiy that there was a foothold there and to press it?  It appears he was counseled that, as is the case with Taurus, Stairway’s lowest voice descends chromatically from A down to F but then, significantly, ‘avoids’ the fifth,” and that this is such a good argument, Malofiy should go it himself and ask Page during direct and perhaps set up a gotcha moment later?

And I’m surprised at this because it’s weak at best.

To argue that Stairway “avoided” the fifth (whether the chord or the note but he seems to have meant chord) is to tenuously assume that the fifth is the default cadence. Stairway “avoided” a bunch of other notes and chords as well, indeed every possibility that it did not employ. But let’s admit for a moment that the fifth, “E” might reasonably be expected. There’s still no gotcha here. The G that’s used there instead is, I’d argue, the next closest thing. They are functionally almost interchangeable. If I played Stairway for you, but swapped out those two notes, or chords, or both, you wouldn’t flinch. They’re very interchangeable.

What the plaintiff is calling attention to is something he should avoid like the plague. It seems like a case where a musicologist saw something, seized upon it, and led their client astray.

Taurus meanwhile certainly does avoid the fifth as Malofiy was obviously advised, but I might add it avoids it awkwardly as all hell. Taurus diverges significantly from Stairway at this signature moment! Why on earth bring it up?! The plaintiff’s musicologist might myopically disagree and evidently did, but a jury would hear it my way all day long.

Musicology geeky explanation thing coming now… Taurus makes its way down to F, a subdominant function, and then doubles down on the “subdominant-ness” moving down to D, going considerably out of its way to employ an ethereally vague, not quite plagal but certainly NON-dominant to tonic cadence.

Stairway doesn’t employ the most dominant note available, but chooses a very similar substitute for it, and as I said, you wouldn’t even notice if I switched them out. It’s a dominant to tonic cadence. They’re just wrong.

Look for this too… At some point Page evidently admitted that “Chim Chim Cheree” from Mary Poppins contains similarities with Stairway, which it certainly does, but he couldn’t quite manage to see where Taurus is also similar.

While reading this you might pause to ask, “But did you not say you agreed with the verdict?” I did. And that’s rather the point. Yes, they sound similar. I don’t blame Page for not readily agreeing; I’m merely entertained by it. But no, it’s still not infringement. And that’s why forensic musicology is interesting. Check out my analysis for more on how Stairway To Heaven can sound so much like Taurus and yet, it is not copyright infringement.

Written by brianmcbrearty